Sherrill Carvalho v. Department of Justice

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SHERRILL A. CARVALHO, DOCKET NUMBER

Appellant, SF-1221-15-0208-W-2

v.

DEPARTMENT OF JUSTICE, DATE: January 10, 2023

Agency,

and

OFFICE OF SPECIAL COUNSEL

Intervenor. 1

THIS FINAL ORDER IS NONPRECEDENTIAL 2

Adam Herzog, Esquire, Avi Kumin, Esquire, and Colleen Coveney,

Esquire, Washington, D.C., for the appellant.

Carol L. Shea, Esquire, Charles M. Kersten, Esquire, and Evan Harry

Perlman, Washington, D.C., for the agency.

Wojun Lee, Esquire, and Joseph E. Siegelman, Esquire, Oakland,

California, for the intervenor.

Henry J. Kerner, Washington, D.C., for the intervenor.

1

The Special Counsel, pursuant to 5 U.S.C. § 1212(c)(2) and 5 C.F.R. § 1201.34(b)(2),

moved to intervene in this case as a matter of right upon o btaining the consent of the

appellant. Carvalho v. Department of Justice, MSPB Docket No. SF-1221-15-0208-W-

1, Initial Appeal File (IAF), Tab 4. The administrative judge granted the motion. IAF,

Tab 9.

2

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

2

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

Member Leavitt recused himself and

did not participate in the adjudication of this appeal.

FINAL ORDER

¶1 The appellant and the intervenor have filed petitions for review, and the

agency has filed a cross petition for review of the initial decision, which denied

the appellant’s request for corrective action in this individual right of action

(IRA) appeal. Generally, we grant petitions such as these only in the following

circumstances: the initial decision contains erroneous findings of material fact;

the initial decision is based on an erroneous interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the administrative

judge’s rulings during either the course of the appeal or the initial decision

were not consistent with required procedures or involved an abuse of discretion,

and the resulting error affected the outcome of the case; or new and material

evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the parties have not

established any basis under section 1201.115 for granting the petition s or cross

petition for review. Therefore, we DENY the petition s for review filed by the

appellant and intervenor and the cross petition for review filed by the agency and

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

BACKGROUND

¶2 The appellant, a former Assistant United States Attorney (AUSA), filed a

timely IRA appeal alleging that she made protected disclosures that were

3

contributing factors in the agency’s actions to place her on a performance

improvement plan (PIP), to propose her removal for performance reasons, and to

issue a removal decision letter based on those performance reasons. Carvalho v.

Department of Justice, MSPB Docket No. SF-1221-15-0208-W-1, Initial Appeal

File (IAF), Tab 1 at 10, 64, 68. 3 The appellant asserted that she made protected

disclosures to an attorney with the agency’s Professional Responsibility Advisory

Office (PRAO) and to her second-level supervisor, informing them that a fellow

AUSA may have had an ethical obligation to report to the judge in a criminal case

the fellow AUSA’s knowledge of ex parte contacts that occurred between defense

counsel in the trial and an alternate juror but had not done so and was not inclined

to do so. Id. at 10, 62, 64; IAF, Tab 55 at 6.

¶3 After a hearing, the Board’s administrative judge denied the appellant’s

request for corrective action. Carvalho v. Department of Justice, MSPB Docket

No. SF-1221-15-0208-W-2, Appeal File (W-2 AF), Tab 25, Initial Decision (ID)

at 2, 36. The administrative judge found that, after a guilty verdict in the

criminal trial at issue, the jury informed the fellow AUSA who prosecuted the

case that defense counsel had made an alternate juror uncomfortable by making

such comments to her outside of the courtroom as, “Do you have the time?” or

“You don’t mind if I share this elevator?” ID at 5. The administrative judge

found that, after the fellow AUSA later mentioned the juror contact issue and

other misbehavior of defense counsel to colleagues, including the appellant,

during a hallway conversation at work, the appellant worried that she might have

3

The agency issued a January 12, 2009 decision letter effecting the appellant’s removal

upon receipt of the letter. IAF, Tab 11 at 26, 34. Nevertheless, the agency

retroactively reinstated the appellant and placed her on administrative leave pending the

intervenor’s investigation of her whistleblower complaint. IAF, Tab 24 at 1 -2, Tab 42

at 23. Effective May 23, 2009, the agency terminated the appellant’s appointment

pursuant to 5 C.F.R. part 715, which covers voluntary separations such as resignations.

IAF, Tab 11 at 24. Effective May 24, 2009, the appellant was appointed to an

Attorney-Advisor position with the Social Security Administration, id. at 22, where she

later served as an administrative law judge, IAF, Tab 42 at 23; Hearing Transcript (HT)

at 282 (testimony of the appellant).

4

a personal duty as an officer of the court to report the ex parte juror contact to the

judge in the case. ID at 6-7. The administrative judge noted that, after the

appellant contacted the PRAO attorney and her second-level supervisor, PRAO

ultimately contacted higher-level management and informed them that, depending

on the context, the prosecutor “could have a duty to report that contact to the

court.” ID at 7-9. After the Professional Responsibility Officer at the

U.S. Attorney’s Office was consulted and recommended disclosing the contact to

the court, the prosecutor did so; the judge in the criminal case, however, took no

further action. ID at 9-10.

¶4 The administrative judge found that the appellant was not aware of the

existence of any applicable California Rule of Professional Conduct when she

contacted PRAO and called PRAO only to seek advice as to whether she had a

personal obligation to report what she had heard in the hallway. ID at 10 -11.

The administrative judge further found that, although the appellant did not know

when she spoke with the PRAO attorney or her second-level supervisor whether

the ex parte contact had been reported to the court, she did not believe that the

information had been disclosed to the court. ID at 11. The administrative judge

concluded that, “while it is reasonable to conclude that the appellant’s

communications with PRAO and [her second-level supervisor] did not constitute

disclosures of the type meant to be protected under 5 U.S.C. § 2302, in light of

the extremely liberal analysis required to be applied in such cases, I find that they

were protected under the statute.” ID at 11. The administrative judge further

found that the appellant proved that her disclosures were a contributing factor in

the personnel actions because management officials were aware of the disclosures

and took the actions within a period of time such that a reasonable person co uld

conclude that the disclosures were a contributing factor. ID at 12.

¶5 Nevertheless, the administrative judge held that the agency proved by clear

and convincing evidence that it would have taken the same actions absent the

appellant’s disclosures. ID at 36. The administrative judge found that the

5

agency’s evidence supporting its performance-based action was “ample” and

sufficient to comprise substantial evidence, that it was clear the appellant’s

performance had been perceived as declining in the years leading up to the PIP,

that those performance issues had been discussed repeatedly with the appellant,

and that resorting to a PIP had not only been actively contemplated and pursued

but discussed with the appellant long before she contacted PRAO and shortly

thereafter before those who approved the PIP knew of that contact. ID at 14-29.

The administrative judge also held that the agency’s motive to retaliate was

“scant” and “exceedingly weak” because there was no evidence of harm to the

supposed retaliators, the information disclosed was “innocuous,” the attorneys

who may have been concerned about the matter had no role in the PIP or other

agency actions, PRAO merely gives advice or suggestions such that “no AUSA

would fear its involvement in their cases, as one might the Office of Professional

Responsibility or the Office of Inspector General,” and the issue raised by the

appellant to the PRAO attorney was thoroughly concluded with no adverse

consequences to anyone by the time the decision was made to place the appellant

on the PIP. ID at 29-34. The administrative judge further found that it was

exceedingly difficult to believe that the disclosures created a level of animus that

would:

move an entire high-level chain of command of busy professionals to

fabricate the need for the extremely laborious and time-consuming

process of gathering numerous examples of performance

deficiencies, marshalling them into a lengthy and detailed PIP letter,

spending many hours over the course of months working with the

appellant, and finally drafting a 30-page proposal notice, with

hundreds of pages of attached documentation.

ID at 34. Finally, the administrative judge found that the agency had placed three

other AUSAs on PIPs since 2003, none of those employees were whistleblowers,

and the agency therefore showed that it had taken similar actions against

nonwhistleblowers who were otherwise similarly situated to the appellant. ID

at 34-35.

6

DISCUSSION OF ARGUMENTS ON REVIEW

The Agency’s Cross Petition for Review

¶6 The agency asserts that the administrative judge incorrectly found that the

appellant had a reasonable belief that she made a protected disclosure. Petition

for Review (PFR) File, Tab 8 at 4-5. In particular, the agency asserts that the

appellant was not aware of California Rule of Professional Conduct 5-320, which

addresses contact with jurors, when she made her disclosures. Id. at 8-9, 12. The

agency also contends that the appellant has not suggested that she believed that

the U.S. Attorney’s Office or the fellow AUSA violated any other law, rule, or

regulation by not immediately reporting the ex parte contact to the court. Id.

at 12-13.

¶7 In general, a protected disclosure must identify a specific law, rule, or

regulation that was violated. Langer v. Department of the Treasury, 265 F.3d

1259, 1266 (Fed. Cir. 2001). Nevertheless, this requirement does not necessitate

identifying a statutory or regulatory provision by title or number when the

employee’s statements and the circumstances surrounding the making of those

statements clearly implicate an identifiable violation of law, rule, or regulation.

Id. Here, we find that the appellant’s disclosures that a fellow AUSA had not

notified the court of his knowledge of an ex parte contact between defense

counsel and a juror during a criminal trial clearly implicated the question of

whether the fellow AUSA had an ethical obligation to do so under the California

Rules of Professional Conduct. See Cal. Rule of Prof. Conduct 5-320(B) (noting

that during trial a member connected with the case shall not communicate directly

or indirectly with any juror), 5-320(G) (requiring a member to reveal promptly to

the court improper conduct toward a person who is a juror of which the member

has knowledge). Any failure by the appellant to identify a specific law, rule, or

regulation when making the disclosures does not, therefore, mean that she did not

reasonably believe that an ethical rule had been violated. See Langer, 265 F.3d

at 1266 (finding that “Langer’s mentioning to the AUSAs and his supervisor that

7

he believed there was a problem with a disproportionately high number of African

Americans being prosecuted clearly implicated the question of selective

prosecution and sufficiently raised possible violations of civil rights to constitute

a protected disclosure”); Benton-Flores v. Department of Defense, 121 M.S.P.R.

428, ¶¶ 7, 9-10 (2014) (finding protected disclosures concerning staff mistreating

students, even when the disclosures did not reference a law, rule, or reg ulation,

because the agency’s regulations clearly mandated the safety and security of staff

and students); Baldwin v. Department of Veterans Affairs, 113 M.S.P.R. 469,

¶¶ 16-21 (2010) (finding protected a disclosure of a physical threat of harm, even

though the disclosure did not identify a law, rule, or regulation); Mogyorossy v.

Department of the Air Force, 96 M.S.P.R. 652, ¶¶ 12-13 (2004) (finding protected

a disclosure that the agency failed to give its employees breaks, even absent a

reference to a specific law, rule, or regulation); Kalil v. Department of

Agriculture, 96 M.S.P.R. 77, ¶ 16 (2004) (finding protected a disclosure that

could reasonably be regarded as evidencing an obstruction of justice violation,

even though the appellant did not cite any specific law, rule, or regulation);

Salinas v. Department of the Army, 94 M.S.P.R. 54, ¶ 8 (2003) (finding protected

a disclosure that a coworker was working on personal items when he should have

been performing agency work, even though the appellant did not identify a

specific regulatory violation). Because we agree with the administrative judge

that the appellant reasonably believed that failing to report the ex parte contact

implicated certain ethical obligations, she need not also have believed that such

failure violated another law, rule, or regulation.

¶8 The agency further claims that the appellant called PRAO only to seek its

advice as to whether she might have a personal obligation to report what she

heard, not to reveal agency misconduct, and that she similarly spoke to her

second-level supervisor in an attempt to follow PRAO’s instructions, not because

she believed that any agency employee had violated a law, rule, or regulation.

PFR File, Tab 8 at 13-14. We disagree. As set forth below, the appellant, while

8

seeking advice as to her own obligations, also indicated that an AUSA had not

reported and/or was not inclined to report the ex parte contact himself. Moreover,

the appellant’s motive for making her disclosures, such as obtaining advice for

herself, does not exclude them from protection. 5 U.S.C. § 2302(f)(1)(C); 4 see

Ayers v. Department of the Army, 123 M.S.P.R. 11, ¶ 20 (2015).

¶9 The appellant testified that she told the PRAO attorney on March 11, 2008,

“what the AUSA had told me,” which was that he “wasn’t inclined” to report the

ex parte contact to the court. HT at 382-83, 386 (testimony of the appellant).

The appellant testified that she told the PRAO attorney

that another prosecutor in my office informed me and some others

who were there that . . . he had been told after the verdict . . . by

members of the jury that there had been communications between

. . . the defense attorney and a juror on several occasions; and that

the juror was made very uncomfortable by that; and that this

prosecutor had indicated that the other members of the jury who

heard about this advised her to let the judge know but that she had

not, and that none of the other members of the jury had advised the

court either; and that the prosecutor in my office had not notified the

court.

Id. at 386-87. The appellant wrote contemporaneous notes of her discussion with

the PRAO attorney, which indicate the appellant’s having reported that she and

some of my colleagues heard another colleague tell us about talking

to the jury after a guilty verdict in his trial. He said that one juror

told him that the defense attorney approached her several times

outside of the jury proceedings [and] that made her uncomfortable.

She told some of the other jurors who encouraged her to tell the

judge. She said she didn’t tell the judge. I [and] 2 other of my

colleagues encouraged this attorney to tell the presiding judge about

it. He responded that he was not inclined to do that. PRAO attorney

4

Section 2302(f)(1)(C) was enacted as part of the Whistleblower Protection

Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199, § 101, 126 Stat. 1465, 1466.

The Board held in Day v. Department of Homeland Security, 119 M.S.P.R. 589, ¶¶ 9-23

(2013), that section 101 was a clarification of existing law and applied retroactively. In

any event, even prior to the passage of the WPEA, the Board recognized that an

appellant’s motive for making a disclosure was not relevant to whether that disclosure

was protected. Molinar v. Department of Veterans Affairs, 80 M.S.P.R. 248, ¶ 9 (1998).

9

asked if I’d talked to my supervisor about [it]. I told her that he was

present when [my] colleague talked about it. I told her I wanted to

know if I had a responsibility to do anything about [it]. She said she

would look into it [and] be back in touch w[ith] me. She asked if

this was a recent event. I said it occurred last week.

W-2 AF, Tab 14, OSC Exhibit (Ex.) 213 at 104-05. The AUSA did not deny

stating that he was not inclined to report the ex parte contact; rather, he testified

that he did not recall making that statement. HT at 48-49 (testimony of the

AUSA).

¶10 The appellant further testified that, although she was not aware of a specific

name or number of a rule that required the reporting of the ex parte contact, she

knew that the judge in question had required such reporting in previous cases, she

considered herself an officer of the court, and she believed that failing to report

the ex parte contact “was a violation of ethical responsibility, ethics.” HT

at 384-85 (testimony of the appellant). She testified that she called PRAO to seek

advice as to what duty she had in that situation and that she did not tell the PRAO

attorney which AUSAs had worked on the case because she was not calling “for

the explicit purpose of getting anyone in trouble.” HT at 387, 395 (testimony of

the appellant). She testified that the PRAO attorney mentioned a rule of candor

with the court as well as a California bar rule requiring the reporting of the ex

parte contacts to the court. HT at 396 (testimony of the appellant). She testified

that she told the PRAO attorney that she did not know if the agency might report

it in the future, but that up to that point she believed that it had not been reported

to the court. HT at 397 (testimony of the appellant).

¶11 The PRAO attorney testified that she did not “think” the appellant tol d her

that her fellow AUSA was not inclined to report the ex parte contact and that her

recollection was that the appellant did not know whether it was going to be

reported. HT at 1623-24 (testimony of the PRAO attorney). She nevertheless

testified that, when she completed a summary sheet of her conversation with the

appellant, she believed that the question of whether the ex parte contact was

10

going to be reported or had been reported was sti ll “a work in progress.” HT

at 1624 (testimony of the PRAO attorney). In fact, an inquiry summary sheet

indicates that the PRAO attorney initially suggested to the appellant that she,

tell the Prosecutor or a supervisor that she had contacted PRAO to

discuss whether she had any obligations to report the information she

had heard, and that she had been advised by PRAO that, depending

on all of the relevant facts, the contact may need to be reported to the

court by the AUSA who had experienced the contact or by a

supervisor.

W-2 AF, Tab 24 at 6. The PRAO attorney’s indication in the inquiry summary

sheet—that the appellant should tell the AUSA in question that he may need to

report the contact—supports the appellant’s contention that she informed the

PRAO attorney that the AUSA had not reported the ex parte contact t o the court.

The appellant also testified that, when she spoke with her second -level

supervisor, HT at 917, she “told him that I was still thinking or concerned that the

ex parte contact that [her fellow AUSA] had talked about after the . . . trial and

that he had talked about just the week before, I said I was —I was still concerned

that I thought this matter needed to be reported to the court,” HT at 392

(testimony of the appellant). The second-level supervisor testified that the

appellant expressed her concern to him about the juror contact. HT at 977

(testimony of the second-level supervisor). Thus, we find that the record

evidence establishes that the appellant, in making her disclosures, not only

requested advice regarding whether she had a duty to report the ex parte contact

but also disclosed and expressed her concern that her fellow AUSA had not or

was not inclined to do so.

¶12 The agency further contends that any belief the appellant may have had that

she disclosed a violation of law, rule, or regulation was not reasonable because

she was “acting on a fragment of a conversation that she had heard in the hallway

a week prior,” she did not know whether her fellow AUSA had reported the ex

parte contact to the court, she sent an email to the PRAO attorney noting that the

11

AUSA did not indicate whether he intended to notify the judge, and the PRAO

attorney testified that she did not have enough information to determine whether

the AUSA had violated a rule. PFR File, Tab 8 at 15-16. The agency contends

that additional facts were readily ascertainable if the appellant had spoken to the

AUSA between the date of the hallway conversation and her telephone call to the

PRAO attorney, such as the fact that the AUSA intended to research his

responsibilities and “explore the matter further.” Id. at 16-17. 5

¶13 As set forth above, the appellant had sufficient information to reasonably

believe that the AUSA in question had not reported the ex parte contact to the

court, even though he was obligated to do so under ethics rules. The agency has

not shown that the appellant was required to contact the AUSA an additional time

to ascertain whether his intentions regarding not reporting the ex parte contact to

the court had changed. See Conrad v. Department of Justice, 99 M.S.P.R. 636,

¶¶ 10, 13-14 (2005) (finding that the appellant was not required to confront the

alleged wrongdoers to establish that his belief was reasonable and that an

employee need not prove an actual violation to establish that he had a reasonable

belief that his disclosure met the statutory criteria). Under these circumstances,

we find that the agency has shown no error in the administrative judge’s finding

that the appellant reasonably believed that she made protected disclosures.

The Intervenor’s Petition for Review

¶14 The intervenor asserts that the administrative judge improperly applied the

lower, substantial evidence standard that the Board uses in performance -based

actions in evaluating the strength of the evidence in support of the agency’s

actions, rather than the more stringent clear and convincing evidence standard.

PFR File, Tab 4 at 10. More specifically, the intervenor asserts that the

5

The agency further contends that the acting officials did not perceive the appellant as

a whistleblower. PFR File, Tab 8 at 17-23. We need not address this argument because

we agree with the administrative judge that the appellant proved by preponderant

evidence that she made protected disclosures.

12

administrative judge should have evaluated whether the agency had strong

evidence to support its personnel actions and erroneously relied on a finding that

the agency produced substantial evidence in support of its actions “as sufficient

to determine that clear and convincing evidence showed that the Agency would

have taken the same action regardless of Appellant’s whistleblowing.” Id. at 10,

12. Thus, the intervenor contends that the administrative judge did not

“rigorously analyze the strength of the evidence, beyond his general finding that

it met the substantial evidence standard.” Id. at 13. We disagree. 6

¶15 The administrative judge correctly set forth the standard in this case, noting

that the Board must order corrective action unless the agency establishes by clear

and convincing evidence 7 that it would have taken the same personnel actions

absent the disclosures. ID at 12-13; see 5 U.S.C. § 1221(e)(1)-(2).

The administrative judge also correctly found that, in determining whether an

agency has shown by clear and convincing evidence that it would have taken the

same actions absent the disclosures, the Board will consider the strength of the

evidence in support of its actions, the existence and strength of any motive to

retaliate on the part of the agency officials who were involved in the decision s,

and any evidence that the agency takes similar actions against employees who are

6

The intervenor and the agency have filed additional pleadings addressing Miller v.

Department of Justice, 842 F.3d 1252 (Fed. Cir. 2016), and its possible application to

this appeal. PFR File, Tabs 20-21. In Miller, which did not involve a

performance-based action under 5 U.S.C. chapter 43 as in this case, the court addressed

the connection between the clear and convincing evidence burden of pr oof on the

agency and the court’s own substantial evidence standard of review, noting that what

constitutes substantial evidence for purposes of the court’s review may be determined

only with respect to the burden of proof that the litigant bore in the tri al court.

842 F.3d at 1258. The intervenor has not shown that this principle, or any other

holding set forth in Miller, affects our determination, except as set forth below, that the

administrative judge correctly applied the clear and convincing evidenc e standard in

this case.

7

Clear and convincing evidence is that measure or degree of proof that produces in the

mind of the trier of fact a firm belief as to the allegations sought to be established.

5 C.F.R. § 1209.4(e).

13

not whistleblowers but who are otherwise similarly situated. ID at 13; see Carr v.

Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999).

¶16 The administrative judge’s discussion of the substantial evidence standard

arose in connection with his analysis of the intervenor’s contention that the

agency’s failure to show a clear and convincing basis for the PIP required a

finding that the PIP, the proposed removal, and the decision notice “cannot be

sustained.” ID at 14. The administrative judge found that an agency does not

need to prove in an IRA appeal the merits of the action by the usual applicable

burdens of proof, much less by clear and convincing evidence. Id. The

administrative judge correctly held that an agency instead must show by clear and

convincing evidence that it would have taken the same action absen t the protected

disclosure. Id. The administrative judge therefore held that, “while the agency in

this case need not necessarily introduce substantial evidence sufficient to support

its performance-based actions, the Board may consider the strength of the

agency’s evidence in support of its actions.” Id.

¶17 The administrative judge then found that “if this were a regular appeal

strictly of a performance-based action under Chapter 43 of title 5 of the United

States Code, the agency’s evidence in support of it would be sufficient to

comprise substantial evidence . . . .” ID at 14-15 (emphasis added). The

administrative judge thereafter otherwise correctly applied the clear and

convincing evidence standard in this case. The administrative judge reviewed and

considered the testimony of the appellant’s peers and others who worked with her

on cases and who believed that she had done some good work, was not at fault for

excessive delays cited in the proposal and decision notices, was not too nervous

at trial, and wrote indictments that were legally sufficient. Despite this evidence,

the administrative judge found that the agency’s failure to rely on these

individuals as witnesses did not undermine its case because the agen cy called as

witnesses the managers who actually supervised and evaluated the appellant or

reviewed and assessed her performance as a part of their duties. ID at 15.

14

¶18 The administrative judge further noted that the letter placing the appellant

on a PIP provided specific and detailed examples of performance deficiencies in

four of her five critical elements, and the proposal notice provided extremely

detailed explanations of her deficiencies, synthesized the evaluations of three

supervisors, and incorporated criticism of her performance by an AUSA in

another district office, the Federal Bureau of Investigation and investigating

agents with whom she worked, as well as the presiding judge in one of her trials

during the PIP. ID at 15-16; W-2 AF, Tab 8, OSC Ex. 65, Tab 9, OSC Ex. 95.

Despite the appellant’s contentions that the deficiencies set forth in the proposal

notice were false, petty, or overblown, the administrative judge found that the

hearing testimony

establishes that the agency received numerous complaints from

investigators and case agents with whom she worked, expressing

frustration with the length of time it took for her to indict cases, and

explaining that repeated inquiries were met with her protestations

that she had not had time to do so, or that such inquiries were met

with silence.

ID at 16. The administrative judge found that the evidence also established that

the appellant’s supervisors on several occasions had to remind her to indict cases

that had been assigned to her for more than 1 yea r and often had to give her

explicit deadlines for doing so and that the appellant was sometimes unable to

comprehend inquiries from judges during oral arguments, leading them to openly

criticize her for failing to answer questions. ID at 16-17. The administrative

judge further found that there was substantial evidence that such problems

continued during the PIP period and that testimony from several managers

supported the charges that the agency received complaints and requests for

intervention from individuals with whom the appellant worked, the appellant

unnecessarily delayed indicting cases and failed to work collegially with others,

she failed to effectively “marshall” evidence necessary to support specific

charges in indictments, she failed to move cases forward to settlement or trial

15

despite repeated prompting from her supervisors, and she did not, according to a

judge, have the instincts and natural inclination for jury trials. ID at 17. 8 In

making these factual findings, the administrative judge relied upon the demeanor

of key witnesses. ID at 18, 27, 33; see Haebe v. Department of Justice, 288 F.3d

1288, 1301 (Fed. Cir. 2002) (the Board must defer to an administrative judge’s

credibility determinations when they are based, explicitly or implicitly, on

observing the demeanor of witnesses testifying at a hearing; the Board may

overturn such determinations only when it has “sufficiently so und” reasons for

doing so).

¶19 The administrative judge found that this evidence “clearly constituted at

least substantial evidence” in support of the agency’s actions. ID at 18. Despite

this reference to “substantial evidence,” the administrative judge con cluded his

analysis of this section of the initial decision by finding that the “relative strength

of the agency’s evidence in support of its finding that the appellant had not

successfully completed the PIP, and that her performance under it was

unsuccessful, is ample.” ID at 29. The administrative judge later addressed the

existence and strength of any motive to retaliate and any evidence that the agency

took similar actions against employees who were not whistleblowers but who

otherwise were similarly situated, ultimately concluding that, upon weighing the

three factors set forth in Carr, “the strength of the agency’s evidence in support

of its actions is ample, the strength of any motive to retaliate on the part of the

agency officials who were involved in the decision is exceedingly slight, and the

evidence that the agency takes similar actions against employees who are not

8

The intervenor further asserts that, although the administrative judge was required to

assess the strength of all the charges the agency relied upon in taking its actions, he

made no determination as to any of the specific counts listed in the PIP or the notice of

proposed removal. PFR File, Tab 4 at 14. The above findings by the administrative

judge, however, generally correspond to the critical elements and charges se t forth in

the proposal and decision notices, which include specific allegations of unacceptable

performance relating to the critical elements of Case Handling, Advocacy, Productivity,

and Writing. IAF, Tab 11 at 26-35, Tab 17 at 5-34, 36-50.

16

whistleblowers but who are otherwise similarly situated is clear.” ID at 29 -36.

He therefore found that the agency proved by clear and convincing evidence that

it would have taken the same actions against the appellant absent her disclosures.

ID at 36. Thus, although the administrative judge made several references to the

substantial evidence standard in his initial decision, we find that he ultimately

applied the correct legal standard in this case. 9

¶20 The intervenor also asserts that the administrative judge did not evaluate all

of the evidence, including countervailing evidence, in determining whether the

agency proved by clear and convincing evidence that it would have taken the

same actions absent the appellant’s whistleblowing. PFR File, Tab 4 at 15. In

particular, the intervenor contends that the administrative judge did not evaluate

or weigh the “voluminous” evidence the appellant produced to rebut each of the

charges of poor performance levied against her in the PIP letter and in the notice

of proposed removal, as well as testimony from witnesses who challenged the

agency’s allegations of poor performance and instances of “over-reaching” by the

agency during the PIP. Id. at 15-17. As set forth above, however, the

administrative judge considered the countervailing evidence submitted by the

appellant but nevertheless found that the agency’s evidence was suffic iently

“ample” to warrant, along with the other Carr factors, a finding that the agency

proved by clear and convincing evidence that it would have taken the same

actions absent the appellant’s protected disclosures. In this respect, we find that

the administrative judge complied with the guidance set forth in Whitmore v.

Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012), concerning the clear and

convincing evidence test. Unlike in Whitmore, 680 F.3d at 1368-72, wherein the

court found that the administrative judge abused her discretion by excluding or

9

Even assuming that the administrative judge did not apply the correct legal standard,

we hold, based on the factual findings made in the initial decision, that the agency

produced strong evidence in support of its actions and ultimately proved by clear and

convincing evidence that it would have taken the same actions absent the appellant’s

protected disclosures. ID at 13-36.

17

failing to consider evidence offered by the appellant that was necessary to

adjudicate his whistleblower claim, the administrative judge here did not prevent

the appellant from effectively presenting her case. The administrative judge

approved all of the witnesses requested by the appellant and the intervenor,

compare IAF, Tab 56, with IAF, Tab 62 and HT (June 24, 2015), held an 8-day

hearing, and admitted and considered thousands of pages of evidence submitted

by the appellant and the intervenor. Moreover, the thorough ly explained initial

decision and lengthy hearing transcript reveal that the administrative judge

listened closely to the testimony of witnesses from both sides, including those

who bolstered the appellant’s claim of reprisal for whistleblowing. See Campbell

v. Department of the Army, 123 M.S.P.R. 674, ¶¶ 22-23 (2016).

¶21 The intervenor further asserts that the administrative judge improperly

relied on non-Carr factors when he held that the agency had nonretaliatory

reasons for its actions, such as the appellant’s alleged poor performance for many

years before her placement on a PIP, her prior supervisor’s failure to take

appropriate action during that time because he was “too kind” and had a large

workload, and her new supervisor’s willingness to be more confrontational and

“micro-manage” the appellant. PFR File, Tab 4 at 18-19. The intervenor asserts

that the administrative judge’s considering these nonretaliatory reasons as part of

his analysis of the strength of the agency’s evidence was improper because he did

not assess the actual charges brought against the appellant or the evidence

supporting those charges. Id. at 19. The intervenor contends that a nonretaliatory

explanation for personnel actions will be offered in every whistleblower case and

evidence in support of such an explanation cannot be all that is required for the

agency to meet its burden of showing that it would have taken the same action

absent the disclosures. Id. at 20-22.

¶22 Although the intervenor contends that the administrative judge improperly

relied on “nonretaliatory reasons,” such as the appellant’s pre -PIP deficiencies, in

finding that the agency’s evidence in support of its actions was strong, we

18

disagree. The administrative judge made these findings in response to arguments

raised by the intervenor and the appellant that the appellant’s annual performance

ratings before her placement on the PIP contained no criticism, that the agency

began to closely scrutinize her work only after her disclosures, and that the

appellant had no prior notice that her performance was considered deficient until

the agency placed her on a PIP. ID at 18-29. Further, the administrative judge’s

discussion of the years leading up to the PIP shed light upon his findings

regarding the appellant’s credibility. As the administrative judge found, these

well-documented performance issues and meetings with supervisors “bel[ie] the

appellant’s testimony” of her unblemished career and prove that her claim that the

PIP came out of nowhere “is simply not accurate.” ID at 19 n.11, 26 n.16.

Moreover, as set forth above, the administrative judge did not rely upon these

findings relating to the appellant’s pre-PIP performance as the sole basis for his

finding that the agency’s evidence in support of its actions was strong. ID

at 13-18. Instead, as previously discussed, the administrative judge’s

determination that the agency submitted “ample” evidence in support of its

actions was based on testimonial and documentary evidence, bolstered in part by

his demeanor-based credibility findings, that corresponded to the critical elements

addressed in the PIP and the charges set forth in the proposal and decision

notices.

¶23 Thus, we find that the intervenor has not established a basis for disturbing

the factual findings and legal conclusions made by the administrative judge. 10

10

The intervenor has filed a motion for leave to submit an additional pleading that

would discuss the applicability of Santos v. National Aeronautics & Space

Administration, 990 F.3d 1355 (Fed. Cir. 2021), to this case. PFR File, Tab 23. We

deny the motion because the intervenor has not shown that the additional argument

would be material, i.e., of sufficient weight to warrant a different outcome from that of

the initial decision. 5 C.F.R. § 1201.114(k); see Russo v. Veterans Administration,

3 M.S.P.R. 345, 349 (1980). In Santos, the court held that, in addition to the five

elements an agency must prove in a performance-based action taken under 5 U.S.C.

chapter 43, the agency also must justify the institution of a PIP by proving by

substantial evidence that the employee’s performance was unacceptable prior to the

19

The Appellant’s Petition for Review

The agency’s evidence in support of its actions is strong.

¶24 Regarding the strength of the agency’s evidence, the appellant contends that

the initial decision provides a terse, one-page summary of a voluminous record

involving her work performance without identifying any of the four counts upon

which her PIP and decision letter were based. PFR File, Tab 3 at 22-23. She also

asserts that several of the agency’s specific findings regarding her performance

were unexplained or improperly determined. Id. at 24-25. As set forth above,

however, the administrative judge’s findings generally reflect the critical

elements set forth in the PIP and the charges set forth in the proposal and decision

notices, which included specific allegations of unacceptable performance relat ed

to the critical elements. ID at 15-17. The appellant’s assertions do not establish

that the administrative judge erred when he found “ample” evidence in support of

the personnel actions taken by the agency. ID at 29, 35.

¶25 The appellant also contends that, instead of addressing the evidence

supporting the personnel actions, which all occurred in 2008, the administrative

judge addressed the appellant’s performance in prior years. PFR File, Tab 3

at 23, 26. As previously discussed, this analysis placed the appellant’s more

recent performance issues in context and was made in response to the appellant’s

claims that the agency closely scrutinized her work only after her disclosures and

that she was not aware that her performance was deficient until the agency placed

PIP. Santos, 990 F.3d at 1360-61. We find that this case is distinguishable from

Santos. First, this case does not involve an action taken under 5 U.S.C. chapter 43.

Rather, it is an IRA appeal, under which the Board l acks the authority to adjudicate the

merits of the underlying personnel action. See Lu v. Department of Homeland Security,

122 M.S.P.R. 335, ¶ 7 (2015). Second, the personnel actions in this case do not include

a removal for unacceptable performance. As set forth above, the appellant appears to

have resigned in lieu of removal. In any event, given that one of the personnel ac tions

involved the appellant’s placement on a PIP, the administrative judge addressed the

appellant’s pre-PIP performance in great detail, finding significant evidence in support

of that action. ID at 13-29. Thus, we find no basis for granting the interv enor’s motion

in this case.

20

her on a PIP. ID at 18-29. Therefore, the appellant has shown no error in the

administrative judge’s more extensive review of the appellant’s performance.

The relevant agency officials did not have a strong motive to retaliate.

¶26 The appellant asserts that the administrative judge erred when he found that

the agency did not have a strong motive to retaliate because he improperly

focused on the supposed triviality of the content of the ex parte communications,

rather than on the disclosures themselves. PFR File, Tab 3 at 11 -12. We

disagree. In response to the appellant’s argument that her disclosures angered

agency officials because they might have led to a challenge of the defendant’s

conviction in the criminal case, the administrative judge addressed the nature of

the ex parte contacts, which were a part of the disclosures, in finding that the

appellant had exaggerated and mischaracterized the evidence. ID at 29 -30. The

administrative judge properly considered what he found to be the “innocuous”

nature of the ex parte communications in deciding whether any agency officials

would have likely been so concerned about the verdict as to establish a motive on

their part to retaliate against the appellant for her disclosures. ID at 30; Ryan v.

Department of the Air Force, 117 M.S.P.R. 362, ¶ 14 (2012) (finding that

assessing the existence and extent of any retaliatory motive cannot be properly

made without considering the nature of the disclosures).

¶27 The appellant also contends that the administrative judge ignored evidence

pertaining to the potential harm to agency officials resulting from the disclosures

and that he gave too much weight to the testimony of agency officials who denied

having a retaliatory motive. PFR File, Tab 3 at 12. In this regard, the appellant

asserts that the administrative judge ignored evidence that her disclosures

threatened the “integrity” of the verdict in the criminal case and threatened to

expose the ethical lapses of agency officials who were complicit in the AUSA’s

failure to report the ex parte contacts. This allegedly ignored evidence included

the appellant’s testimony that her second-level supervisor told her that

management did not want to disturb the verdict, testimony that the AUSA was

21

discouraged from reporting the ex parte communications to the court, and a

statement from PRAO that the ex parte communications went to the integrity of

the verdict. Id. at 13-14.

¶28 The Federal Circuit has cautioned us against taking too narrow a view of the

second Carr factor. In Whitmore, 680 F.3d at 1370, the court stated, “[t]hose

responsible for the agency’s performance overall may well be motivated to

retaliate even if they are not directly implicated by the disclosures, and even if

they do not know the whistleblower personally, as the criticism reflects on them

in their capacities as managers and emplo yees.” The court in Whitmore

determined that, when a whistleblower makes highly critical accusations of an

agency’s conduct that draws the attention of high-level agency managers, the fact

that an agency official is “outside the whistleblower’s chain of c ommand, not

directly involved in alleged retaliatory actions, and not personally named in the

whistleblower’s disclosure is insufficient to remove the possibility of a retaliatory

motive or retaliatory influence,” and that the Board should consider any mot ive to

retaliate on the part of the agency official who ordered the action, as well as that

of any officials who influenced the action. Id. at 1371. In Miller, 842 F.3d

at 1261-62, the court instructed the Board not to limit its consideration of a

motive to retaliate to the appellant’s supervisors, but to examine whether a

retaliatory motive could be imputed more broadly to other officials or entities

involved in the decision. Similarly, in Robinson v. Department of Veterans

Affairs, 923 F.3d 1004, 1019 (Fed. Cir. 2019), the court found that, although the

deciding official did not have a personal motive to retaliate against the appellant

for contradicting an agency Under Secretary, the administrative judge erred by

failing to consider whether he had a “professional retaliatory motive” against the

appellant because his disclosures “implicated the capabilities, performance, and

veracity of [agency] managers and employees, and implied that the [agency]

deceived [a] Senate Committee.” Nevertheless, after considering the

administrative judge’s reliance upon the deciding official’s credibility and

22

demeanor in his determination that the deciding official lacked a motive to

retaliate, the court agreed with the administrative judge that there was no

retaliatory motive, either professional or personal. Id. at 1019-20. The court in

Robinson therefore found that that the second Carr factor slightly favored the

agency and that the agency met its overall clear and convincing evidence burden

given the strength of Carr factor one and the neutral evidence regarding the third

Carr factor. Id. at 1020.

¶29 Here, the administrative judge considered the appellant’s arguments

concerning potential harm to agency officials, including those who were not her

supervisors, but found them unavailing. ID at 29-34. Moreover, although the

appellant contends that her testimony and contemporaneous notes show that her

second-level supervisor told her that management did not want the verdict to

be disturbed, PFR File, Tab 3 at 13, the administrative judge found that the

second-level supervisor vehemently denied making such a statement and that this

allegation was not reflected in the appellant’s correspondence with PRAO or the

testimony of the PRAO attorney, ID at 8-9. In any event, even assuming that

there was initial concern about disturbing the verdict, the evidence set forth by

the administrative judge suggests that any concern decreased as management

learned more about the “innocuous” nature of the ex parte communications.

ID at 5-10, 30-34. Although some evidence suggests that the agency determined

that it was not necessary to immediately report the ex parte communications to

the court, W-2 AF, Tab 7, OSC Ex. 16, Tab 11, OSC Ex. 158, that same evidence,

as well as testimony found persuasive by the administrative judge, ID at 6, 29-34,

also indicates that the agency requested that the AUSA research the matter further

and take any appropriate action, including drafting a memorandum for

management explaining what had occurred. The fact that the AUSA informed his

supervisor that the judge in the criminal case had “polled” jurors when one juror

alleged that another juror had suggested that the y were not obligated to follow the

law, W-2 AF, Tab 7, OSC Ex. 18, and that PRAO ultimately informed

23

management that the contact should be reported to the court, W-2 AF, Tab 12,

OSC Ex. 207, do not suggest that management officials were overly concerned

about the effect of the disclosures on the verdict or worried about repercussions

they might face for the delay in informing the court.

¶30 The appellant also asserts that her first-level supervisor, whom she claims

was the “architect” of the PIP, had a strong motive to retaliate because the

disclosures exposed the supervisor’s instruction to the AUSA not to report the ex

parte communications to the court and thereby reflected negatively on her

supervisory abilities. PFR File, Tab 3 at 14-15. The appellant asserts that other

officials were motivated to retaliate because a Professional Responsibility Officer

concluded that the ex parte communications must be brought to the court’s

attention, the California rule in question is stringent and requires revealing such

communications promptly, and many agency officials were involved in

discussions regarding the matter for several weeks. Id. at 15-16.

¶31 The administrative judge addressed these arguments, finding that although

the appellant asserted that the agency had a motive to retaliate because her

disclosures might “bring to light ethical lapses of several AUSAs and

supervisors,” ID at 29, the “entire matter had concluded, with no ill effect on

anyone, by mid-April [2008] when the contact was reported to the court,” several

months before the appellant’s July 2008 placement on a PIP, and the appellant’s

first-level supervisor testified that “no one could get in trouble” as a result of the

appellant’s disclosure to PRAO, ID at 32. Further, the appellant has shown no

error in the administrative judge’s determination that, because PRAO merely

gives advice or suggestions, no AUSA would fear its involvement i n their cases.

ID at 33. In any event, the appellant’s disclosures did not reveal any alleged

misconduct by her first-level supervisor. Rather, her disclosures merely informed

PRAO and her second-level supervisor that the matter had not been reported to

the court by the AUSA despite a possible ethical responsibility by him to do so.

Although a Professional Responsibility Officer ultimately concluded that the

24

ex parte communications must be brought to the court’s attention, and although

many agency officials were involved in discussing the matter for several weeks,

these facts do not demonstrate error in the administrative judge’s analysis.

¶32 The appellant further asserts that an Executive Assistant U.S. Attorney

(EAUSA) who dealt with personnel issues for the U.S. Attorney, ID at 22, and

who corresponded with the appellant’s first-level supervisor regarding the

appellant’s performance, indicating that a PIP was the “right direction” to take

and “in order” for the appellant, W-2 AF, Tab 7, OSC Ex. 11, Tab 8, OSC Ex. 32,

also had a motive to retaliate because her involvement in the matter and rush to

place the appellant on the PIP departed from the agency’s normal process, and her

knowledge of the appellant’s performance deficiencies came from the first -level

supervisor, PFR File, Tab 3 at 16-17. The appellant testified that, even if the

EAUSA did not know directly of the disclosures before the appellant’s placement

on the PIP, the first-level supervisor told her of the appellant’s contact with

PRAO within moments of learning of it. Id. at 17.

¶33 The appellant has not, however, shown that the administrative judge erre d

when he found that the EAUSA was a “very reasonable, articulate, and

straightforward witness” who testified that she made the above statements

regarding the appropriateness of a PIP for the appellant before she became aware

of the appellant’s disclosures. ID at 27-28. In addition, the appellant has not

explained how the EAUSA rushed the appellant’s placement on a PIP and what

departure from the “normal” process was involved, aside from asserting that

informal measures were not used. W-2 AF, Tab 4 at 18-21. We note that the

EAUSA had asked the agency’s Office of General Counsel about placing the

appellant on a PIP in April 2007, eleven months before the appellant made her

disclosures and over 1 year before the July 2008 PIP, ID at 27; W-2 AF, Tab 8,

OSC Ex. 65, and that the agency had a long history of concerns regarding the

appellant’s performance prior to her disclosures, ID at 18-29. In addition, despite

the appellant’s contention that the EAUSA learned of the appellant’s disclosure

25

within minutes after the appellant’s first-level supervisor learned of the

disclosures—which the administrative judge found was before the appellant’s

placement on the PIP, ID at 12—the EAUSA actually stated during her sworn

investigatory interview with the Office of Special Counsel that she learned that

the appellant had contacted PRAO long after the appellant’s July 2008 placement

on the PIP. W-2 AF, Tab 12, OSC Ex. 173 at 22, 25, 29-30. Although the

EAUSA indicated that she thought the first-level supervisor first learned of the

appellant’s disclosures “within minutes of calling me,” she also testif ied that she

did not remember whether the first-level supervisor told her of when she learned

of the disclosures; she did not know how the first-level supervisor knew that it

was the appellant who made the disclosures; and the Office of Special Counsel

would have to ask the first-level supervisor to confirm such information. Id.

at 29-31.

¶34 The appellant also asserts that her first-level supervisor and another

manager who helped supervise the PIP determined that the appellant showed poor

judgment in making the disclosures, and that the administrative judge mentioned

these statements but did not draw the necessary inference that such a negative

opinion showed a motive to retaliate. PFR File, Tab 3 at 18. The appellant

further contends that, while the administrative judge recognized that the fellow

AUSA was annoyed and concerned by the appellant’s disclosures, he was more

than simply annoyed and concerned because he investigated the source of the

disclosures, angrily confronted the appellant when he learned that she had made

them, and told another AUSA that the appellant was the “culprit” and that the

disclosures might alter his relationship with the appellant. Id. at 18-19. The

appellant asserts that it is “highly likely” that the AUSA influenced her placement

on a PIP and subsequent termination because he “planned” to discuss the matter

with the appellant’s first-level supervisor, who was his friend. Id. at 19.

¶35 Although the appellant contends that agency officials were motivated to

retaliate because they indicated that the appellant showed “poor j udgment” in

26

making her disclosures, one of those references was made by one of the trial

attorneys in the criminal case to the other AUSA when she noted that the

appellant had contacted PRAO on a case that was not assigned to her and without

having all of the relevant information. W-2 AF, Tab 11, OSC Ex. 166. A

manager who reviewed the appellant’s performance during the PIP with the

appellant’s first- and second-level supervisors testified that the appellant’s

decision to contact PRAO showed poor judgment because he thought that the

nature of the contact between the defense attorney and the juror was trivial, i.e.,

saying “Good morning” and “How are you?” to jurors at a coffee shop. HT

at 187-88, 204 (testimony of the nonsupervisory AUSA). This evidence, which

suggests that a coworker and a manager who was not the appellant’s supervisor

may have disagreed with or been disturbed by the disclosures , does not show that

the officials who placed the appellant on a PIP, proposed her removal, and issued

a decision letter shared in those beliefs or harbored any motive to retaliate against

her. The administrative judge addressed these issues, finding that the AUSA had

no role in the PIP or subsequent agency actions, and that the individuals who did

take the personnel actions were not annoyed by the disclosures and otherwise had

only a weak motive to retaliate. ID at 32-34. The appellant has not shown that

the administrative judge erred in evaluating the countervailing evidence in

support of her position. Her speculation that it was “highly likely” that the fellow

AUSA influenced the appellant’s first-level supervisor to place the appellant on a

PIP because he “planned” to discuss the matter with the supervisor, who was his

friend, does not show that he discussed the matter with the supervisor or

otherwise influenced her, nor does it show that the administrative judge erred in

finding that the agency’s motive to retaliate was not strong. ID at 34.

¶36 Next, the appellant asserts that the administrative judge did not address the

close temporal proximity between her disclosures and the personnel actions ,

given that the agency began discussing and taking steps to place her on a PIP less

than 1 week after learning of the disclosures. PFR File, Tab 3 at 19 -20. The

27

appellant contends that, although the administrative judge acknowledged this

temporal proximity in his contributing factor analysis, he did not consider it in his

analysis of the agency’s motive to retaliate. Id. at 20.

¶37 Despite the appellant’s contentions, the administrative judge did address the

appellant’s claim concerning the timing of her placement on a PIP. ID at 18. The

administrative judge noted that there was significant evidence that the appellant’s

supervisors were concerned about her performance for years and had become

increasingly concerned in the year leading up to the 2008 PIP. ID at 18-29. In

addition, the administrative judge found that the appellant’s place ment on a PIP

coincided with an office reorganization in February 2008 that resulted in a change

in supervisors for the appellant and other AUSAs and a more coordinated

approach to addressing the appellant’s performance issues. ID at 21, 25. The

administrative judge noted that this change resulted in supervisors having to

supervise only 8 attorneys rather than 17, and that the appellant’s new first-level

supervisor had more of a “micromanaging” style and was less lenient than her

former supervisor. ID at 25-26. The administrative judge noted that these

management changes took place before the appellant made her disclosures. ID at

26. The appellant has shown no error in these findings by the administrative

judge.

¶38 The appellant further contends that the administrative judge erroneously

required her to show harm in order to establish a motive to retaliate, incorrectly

interpreting the Board’s decision in Schmittling v. Department of the Army,

81 M.S.P.R. 225, 238 (1999), vacated on other grounds, 219 F.3d 1332 (Fed. Cir.

2000). PFR File, Tab 3 at 21. The appellant asserts that the Board’s decision in

Schmittling addressed whether the acting officials were either harmed or

disturbed by the disclosures. Id. The appellant claims that the agency officials in

this case were at least disturbed by the disclosures and faced potential harm. Id.

¶39 In discussing the existence and strength of any motive to retaliate by the

agency officials who were involved in the personnel actions, the administrative

28

judge noted that “[t]here generally must be a showing of harm – i.e., that the

supposed retaliators were harmed by the employee’s protected disclosure. See

Schmittling v. Department of the Army, 81 M.S.P.R. 225, 238 (1999).” ID at 29.

The administrative judge found that “[h]ere, there is no such evidence ,” and

supported this finding with an extensive analysis of testimonial evidence

presented by agency witnesses. Id. at 29-34. Thus, although the appellant

appears to suggest that the administrative judge improperly placed the burden on

her of showing no motive to retaliate, we disagree. In any event, in

Schmittling, 81 M.S.P.R. at 238, the Board held that there was no strong motive

to retaliate because the agency presented unrebutted evidence that the appellant’s

superiors “were neither harmed nor disturbed by the disclosures.” To the extent

that the administrative judge focused only on whether the acting officials were

harmed by the disclosures, such an analysis would be inconsistent with

Schmittling. Nevertheless, despite his incorrectly stating the holding in

Schmittling, we find that the administrative judge otherwise correctly analyzed

the existence and strength of any motive to retaliate in this case.

The administrative judge considered whether the appellant’s disclosures angered,

annoyed, or concerned any of the acting officials or individuals who may have

influenced those officials, i.e., disturbed them, finding that the existence and

strength of any motive to retaliate was weak. ID at 29-34. Thus, we find that the

administrative judge did consider whether any of the relevant officials in this case

were harmed or disturbed by the appellant’s protected disclosures , or otherwise

had a personal or professional motive to retaliate against her . See Robinson,

923 F.3d at 1019-20; Panter v. Department of the Air Force, 22 M.S.P.R. 281,

282 (1984) (finding that an adjudicatory error that is not prejudicial to a party’s

substantive rights provides no basis for reversing an initial decision).

¶40 We acknowledge that the acting officials may have had some motive to

retaliate, even if they were not directly implicated by the appellant’s disclosures,

to the extent that any criticism reflected on them or others in their capacities as

29

agency managers and employees. Thus, the evidence regarding the second Carr

factor does not unfailingly support the agency. See Miller, 842 F.2d at 1262.

Nevertheless, given the administrative judge’s explained and supported findings

as to why any motive to retaliate was not strong, his reliance on the testimony of

numerous witnesses to that effect, some of whom he found to be credible based

explicitly on their demeanor, ID at 27, 32-33, and his discussion of evidence

supporting the opposite result, such as the testimony of an AUSA who was

“annoyed/concerned” about the appellant’s disclosures, ID at 31, 33-34, we

conclude after consideration of the evidence as a whole that this factor ultimately

tips in the agency’s favor. See Robinson, 923 F.3d at 1019-20; Haebe, 288 F.3d

at 1301 (requiring the Board to give deference to credibility determinations when

they are based, explicitly or implicitly, on the demeanor of witnesses ).

The agency took similar actions against similarly situated employees who

were not whistleblowers.

¶41 Finally, the appellant contends that the agency did not submit evidence

corroborating the testimony of agency officials that it had taken similar actions

against three other employees who were similarly situated to the appellant.

PFR File, Tab 3 at 27-28. The appellant asserts that the agency did not present

evidence showing the length of service, work units, disciplinary standards,

performance records, and disciplinary history of the other AUSAs who were

placed on PIPs. Id. at 28-29. The appellant contends that the three comparators

were treated differently from her because they either resigned or passed the PIP

and continued working for the agency. Id. at 29.

¶42 The administrative judge found, based on the uncontested testimony of two

witnesses, including the testimony of the EAUSA whom he found to be

particularly credible, that the agency took similar actions against employees who

were not whistleblowers but who were otherwise similarly situated to the

appellant. ID at 27, 34-35. The appellant has provided no support for her

apparent contention that testimonial evidence concerning an agency’s treatment

30

of similarly situated nonwhistleblowers must be corroborated by written evidence.

Thus, we find no basis to disturb the initial decision in this regard.

¶43 Moreover, as the court explained in Whitmore, 680 F.3d at 1373, “the

requisite degree of similarity between employees cannot be construed so narrowly

that the only evidence helpful to the inquiry is completely disregarded.” Here the

agency submitted evidence of three other AUSAs who were not whistleblowers,

struggled with performance issues, and were eventually placed on a PIP during

the tenure of the U.S. Attorney and the EASUA. The fact that two of the

individuals who were placed on a PIP chose to resign and one individual

improved her performance and passed the PIP, HT at 1685-88 (testimony of the

EAUSA), does not indicate that they were treated differently from the appellant.

In fact, the U.S. Attorney testified at the Board hearing that, midway through the

PIPs, he informed both the appellant and one of the AUSAs who resigned that

they were not improving, that they would fail the PIP if it ended the next day, and

that they should consider their options, including a voluntary resignation. HT

at 1812-13 (testimony of the U.S. Attorney).

¶44 Having considered the evidence in the record as a whole, we are left with

the firm belief that the agency would have placed the appellant on a PIP,

proposed her removal, and issued a removal decision letter absent he r protected

disclosures. Accordingly, we deny the petitions for review filed by the appellant

and the intervenor and the cross petition for review filed by the agency. The

appellant’s request for corrective action in this IRA appeal is denied.

NOTICE OF APPEAL RIGHTS 11

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

11

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropri ate in any matter.

31

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. O f particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

32

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your represent ative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court-appointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

33

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or a ny court of appeals of

competent jurisdiction. 12 The court of appeals must receive your petition for

12

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the Pres ident on

34

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent j urisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,

132 Stat. 1510.

35

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.